IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE	Revised
Not Restricted
Suitable for Publication	

CRIMINAL DIVISION
CR-19-02234

DIRECTOR OF PUBLIC PROSECUTIONS					
v					
Liam Wilkinson					
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JUDGE:	HER HONOUR JUDGE CARLIN	
WHERE HELD:	Melbourne	
DATE OF HEARING:	26 March 2020 	
DATE OF RULING:
	3 April 2020
	
CASE MAY BE CITED AS:	DPP (Cth) v Wilkinson (Ruling 1)	
MEDIUM NEUTRAL CITATION:	[2020] VCC 357	

RULING
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Subject:	Criminal Law
Catchwords: Ruling-Application for Permanent Stay
Legislation Cited: Criminal Code Act 1995 (Cth); Mutual Assistance in Criminal Matters Act 1987 (Cth); Evidence Act 2008 (Vic); Criminal Procedure Act 2009 (Vic)
Cases Cited: Bollag v AG (Cth) 149 ALR; Rush and Ors v Commissioner of Police [2006] 229 ALR 383; Tasmania v Wykes [2019] TASSC 18.
Outcome: Application denied
	
APPEARANCES:	Counsel	Solicitors	
For the Applicant	Ms. S Borg 	Goldsmith Lawyers	
For the Respondent	Mr. J Gullaci	CDPP	

Her Honour:

Introduction

1.	On 3 June 2019 Liam Wilkinson was charged by the Australian Federal police (‘AFP’) with using a carriage service to transmit an indecent communication to a person he believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code Act 1995 (Cth).    He was committed for trial to this Court and on 21 November 2019 an indictment was signed on behalf of the Commonwealth Director of Public Prosecutions (‘CDPP’) charging him with the same offence.  

2.	On 4 December 2019 Mr Wilkinson’s lawyers filed the instant Application for a permanent stay on the basis that the proceedings were an abuse of process.  In essence, it was argued that both the AFP and the CDPP acted improperly and contrary to the CDPP Prosecution Policy by charging Mr Wilkinson without admissible evidence to support the charge and by relying on information which had been improperly or illegally obtained and ought be excluded at trial.   

History of the Investigation and proceedings

3.	On 7 and 8 March 2019 a 13-year-old female resident of Colorado in the United States reported to her local police station that she had been corresponding on social media with an adult Australian male by the name of Liam and that he had sent her an image of his genitalia.  On 12 March 2019, Rachael Diaz, an investigator with the Jefferson County Sheriff’s Office (‘JCSO’), posing as the complainant, began communicating with the Applicant via Snapchat and text messages using a police issued mobile telephone.  She told him that she was 14 years old.  Two days later the Applicant sent Ms Diaz an image on Snapchat purporting to be of himself.  The image was of a naked adult male from the neck down holding his hand over his penis.  This image is the subject of the charge before the Court.

4.	On 23 May 2019 JCSO referred the matter to the AFP for investigation via Interpol.  On 3 June 2019 the AFP executed a search warrant at the Applicant’s residence.  They seized a mobile telephone in which the telephone number used by Ms Diaz was stored in the contact list under the first name of the complainant. The Applicant was interviewed and admitted sending the complainant two revealing images of himself, but not, as far as he remembered, after he found out her age.   He was charged that day.  

5.	On 30 August 2019 Ms Diaz made a formal statement outlining her interaction with the Applicant.  She acknowledged the truth and accuracy of her statement and her belief that she would be liable to the penalties of perjury for making a false statement.  

6.	The AFP compiled a hand up brief which comprised photographs Ms Diaz had taken of her communications with the Applicant, including the image the subject of the charge, and other evidence gathered in Australia.  It did not include Ms Diaz’ statement for the simple reason that despite the acknowledgement, it did not comply with section 112 of the Criminal Procedure Act 2009 (Vic).  Her statement was, however, disclosed to the defence. 

7.	At a committal mention on 8 November 2019 the CDPP applied for an adjournment pending the outcome of a mutual assistance request in respect of Ms Diaz’s evidence.   The application was opposed by defence and refused by the Magistrate.  The matter then proceeded by way of straight hand up brief with the Applicant committed to trial in this Court and an Initial Directions Hearing set for 10 December 2019.

8.	The indictment was signed on 21 November 2019 and the statement of Ms Diaz was served on the defence by way of a Notice of Additional Evidence dated 29 November 2019.  
 
Submissions

9.	There was no dispute that the evidence of Ms Diaz was critical to the Crown case.  Ms Borg, for the Applicant, submitted that her evidence was inadmissible because it had not been obtained in compliance with the Mutual Assistance in Criminal Matters Act 1987 (Cth) (‘the MACM Act’).  Further, or in the alternative, her evidence was illegally or improperly obtained because she had incited the Applicant to transmit the image in question.  It was, Ms Borg submitted, in breach of the CDPP prosecution guidelines and an abuse of process, for the AFP and CDPP to charge and indict the Applicant when there was insufficient admissible evidence to support the charge, and in circumstances where, even if the evidence was subsequently rendered admissible by a grant of assistance, it ought not be relied upon and would likely be excluded under section 138 of the Evidence Act 2008 (Vic).

10.	Ms Borg accepted that the AFP and CDPP were free to obtain information outside of the parameters of the MACM Act, but such information, she submitted, was just that, information, not evidence. 

11.	In response it was submitted that the evidence of Ms Diaz was clearly relevant and admissible under sections 55 and 56 of the Evidence Act.  The fact her statement was not in a form suitable for inclusion in the hand up brief and was not obtained pursuant to a request under the MACM Act did not detract from that fact.   

12.	The MACM Act was not a code and did not preclude law enforcement agencies of foreign countries from providing assistance outside of that Act, as happened here.  The procedure for making requests under the MACM Act takes time and charges are often laid on the expectation that such requests will be approved in due course. In this case the CDPP requested the Commonwealth Attorney General to make a request to JCSO under section 12 of the MACM Act for the taking of Ms Diaz’s evidence, prior to the committal mention.  Ms Diaz and JCSO have indicated their willingness for her to give evidence, either in person or via a video link, in accordance with any request.  A request has now been made by the Attorney General.  In these circumstances neither the AFP nor the CDPP acted contrary to their prosecution guidelines or in any way that was improper or unfair.  

13.	Further, it was submitted, there was nothing about the conduct of Ms Diaz which ought to have caused the AFP or CDPP not to have acted upon it or which would enliven a discretion to exclude her evidence.    

Conclusion

14.	The law is settled.  It is only in exceptional circumstances that a proceeding will be stayed on the ground that it constitutes an abuse of process.  Proceedings will be an abuse of process only if it can be said of them that they must inevitably fail, not that they will very likely fail.  

15.	In my view, largely for the reasons advanced by the Respondent, I do not consider these proceedings to be an abuse of process.  The Respondent proposes to call Ms Diaz to give evidence in accordance with her statement.  This evidence is clearly relevant and admissible regardless of the form of her statement and regardless of the fact her statement was not obtained pursuant to a request under the MACM Act. 

16.	Whether or not the MACM Act constitutes a code in respect of ‘assistance of a kind that may be provided or obtained under [the] Act’, it is clearly not a code in respect of other assistance.  The assistance so far provided by Ms Diaz, comprising her initial information via Interpol and her statement, has been provided voluntarily.  It is not manifestly assistance of a kind that may be obtained under the MACM Act.  Indeed, until the information was provided to the AFP on 23 May 2019 there was no criminal investigation, let alone proceeding, in Australia with respect to which a request for assistance could have been made.  

17.	To the extent a request for assistance under the MACM Act may be necessary to secure the manner in which Ms Diaz will give her evidence, this has been done.  Given the willingness of Ms Diaz and JCSO to cooperate, in my view, it was reasonable for the AFP and the CDPP to have proceeded on the expectation that such a request would be granted in due course. To do so was not contrary to the CDPP Prosecution Policy.  It is also not without significance that the Applicant’s opposition to the adjournment of the committal mention effectively ensured the request procedure could not be finalized prior to the signing of the indictment.  Further, and in any event, if Ms Diaz were prepared to travel voluntarily to Australia to give evidence, it may be doubted that a request for assistance under the MACM Act is necessary at all.  

18.	Having perused the full transcript of all the text messages between Ms Diaz and the Applicant, I also do not consider that Ms Diaz induced the Applicant to send the relevant image or that she has in any other way acted improperly or illegally such as to make it likely, let alone inevitable, that her evidence will be excluded at trial.  That being the case it was clearly not improper for the AFP and CDPP to have charged the Applicant on the basis of her evidence.  

19.	This was not an operation instigated by police, or a vigilante for that matter, for the purpose of detecting on-line paedophiles.  Such an operation may, depending on the circumstances, constitute entrapment or give rise to public policy or other exclusionary considerations, see for example, Tasmania v Wykes [2019] TASSC 18.  Rather, Ms Diaz was responding to a complaint from a child that she had been sent an indecent image by an adult.   She thereafter assumed the identity of that child and continued the conversation with that adult.  She did not, apart from participating in the conversation, say or do anything to encourage him to send her any images.  

20.	For all these reasons I do not consider the prosecution of the Applicant bound to fail or an abuse of process.   I therefore dismiss the application.